Quick Reactions to the NYSRPA Opinion

  • Date:
  • April 27, 2020

This morning, the Supreme Court handed down its decision in New York State Rifle & Pistol Association v. City of New York. The case concerned a New York City rule that forbid individuals with a premises license from transporting their firearms to shooting ranges and second homes outside the City. The City repealed the rule after the Supreme Court granted review, and the state also passed a law preempting the prior rule. Those actions, a majority of the Court said today, made the case moot. (We’ve covered the case extensively on the blog – see here, here, here, here, here, here, here, here, and here.)

In a per curiam opinion, the Court vacated the decision below and remanded to the Second Circuit, noting that the circuit or district court may consider whether the challengers can add a claim for damages arising from the old rule or assert claims against the new rule. Justice Kavanaugh concurred with the majority, but also wrote separately to state that he shared with the dissent “concern that some federal and state courts may not be properly applying Heller and McDonald.” He added that, “[t]he Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.” In dissent, Justice Alito, joined by Justices Thomas (in large part) and Gorsuch, concluded that the case was not moot and that the rule violated the Second Amendment. We’ll have more analysis on the opinions in the coming weeks, but here are four initial takeaways:

(1) NYSRPA is not the next big Second Amendment case. As we expected after the developments last summer, a majority of the Court found the case moot. That holding, not the Second Amendment, was the dissent’s primary focus as well. The next big Second Amendment case may be coming, but NYSRPA definitely isn’t it.

(2) Even the dissenting justices viewed the Second Amendment issues narrowly. This was not—as the challengers and some amici tried to cast it—a broad case about the right to “bear” arms in public, but one about the rights incidental to “keep” them. As Justice Alito said in dissent, “[w]e deal here with the same core Second Amendment right [as in Heller], the right to keep a handgun in the home for self-defense.” (Emphasis added). The right the challengers were claiming was not a right to bear arms outside the home for self-defense, but “a necessary concomitant” of the keep-right, which was “the right to take a gun outside the home for certain purposes.”

(3) At least four justices are dissatisfied with some lower courts’ implementation of Heller. The dissenters bemoaned the lower courts’ use of heightened scrutiny in this case and suggested that such lax review infected more than just this one instance.

(4) The big question is what’s next. It seems clear that there are four votes for another cert grant, which theoretically could come very soon. We’ve been keeping an eye on pending petitions here: SCOTUS Gun Watch. Assault weapons prohibitions, public carry licenses, and interstate sales are among the possible topics for imminent Supreme Court review.

We’ll have more reactions and analysis going forward, but for now the wait continues for another major Second Amendment case.